Christmas parties in the #MeToo era: how to minimise risk

A year has passed since the birth of the #MeToo movement shone the spotlight on accounts of sexual harassment across the globe.

The Christmas party

Christmas parties should be a time for people to celebrate the end of the year and enjoy each other’s company in a relaxed setting. However, it is important that the event does not get out of hand.

Employers need to perform a balancing act: everyone should be able to have a good time, yet at the same time employers need to make sure this does not extend to tolerating inappropriate behaviour, such as sexual harassment. This means sending a clear message in advance about what is and is not acceptable behaviour, considering how much free alcohol (if any) to provide at the event, and ensuring party goers can get home safely.

Vicarious liability

Complaints of sexual harassment can have serious repercussions for employers, not least because they can be held vicariously liable for the wrongdoing of an employee. Vicarious liability is a legal principle which imposes liability on one person for wrongs committed by another person. In the employment relationship, an employer can become vicariously liable for the wrongdoing of its staff, such as sexual harassment, carried out in the course of employment. Importantly, work-organised Christmas parties or similar work-related events outside of the office are regarded as being sufficiently closely related to work to give rise to vicarious liability if an employee acts inappropriately at the Christmas party.

With more people now willing to publicise their experiences of sexual harassment and unwanted behaviour on social media, it’s easy to see how an incident at a Christmas party could also turn into a public relations disaster if employers fail to adequately protect their employees.

An employer will not be vicariously liable, however, where it took reasonable steps to prevent the wrongdoing from taking place so that the employee was acting on a “frolic of their own” in committing the wrongdoing.  

Top tips

In light of the above, we recommend employers taking the following steps, even those employers who have never had any issues before:

• Circulate an office email: this should be done several weeks prior to the event. Not only should this email contain the basics (the venue, time etc.), but highlight that this is a work-related function even if is taking place after hours and at an external venue;
• Attach a clear Christmas party policy: it is preferable to do this rather than relying on any existing conduct at work/alcohol and substance abuse policies. This will ensure that there’s no confusion among employees and everyone is aware of what will be regarded as inappropriate behaviour.
• Arrange transportation: if the party is being held away from the workplace (as they normally are), it is best practice to protect employees by providing suitable transport both to and from the venue (this is of particular importance for any disabled employees);
• Be wary of the after party: while an employer may be liable for an employee’s wrongdoing at the Christmas party itself, employers should make it clear that they will not endorse any unofficial after party that some employees may be planning separately. Such after party events are often a grey area in terms of whether an employer is vicariously liable for acts which take place there and it is preferable that they don’t happen at all. However, if they are to go ahead, employers need to distance themselves from it, making clear that it is to be held at a different location and they will not be making a financial contribution. If an incident occurs, these measures will help prove that the after party was not in the course of employment and an employee who committed any wrongdoing was on a “frolic of their own”.
• Make sure that employees have the ability to raise complaints in the knowledge that they will be taken seriously and investigated. Having a clear bullying and harassment policy will assist with this.

Closing remarks

The recommendations outlined above will help minimise the risk of harassment claims for employers who decide to hold a Christmas party. However, employers should also be taking steps to combat sexual harassment in the workplace more generally. This could be by delivering training to employees on what harassment in the workplace is, updating any policies and even setting up an anonymous helpline to enable employees to raise complaints without fear of retaliation. All of this should be done on top of a specific policy for the Christmas party. No-one wants to be labelled a scrooge during the festive season, however the #MeToo movement has highlighted what an important role employers have to try and address this issue.